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FOURTH
SECTION
CASE OF CHRISTIAN DEMOCRATIC PEOPLE'S PARTY v. MOLDOVA (No.
2)
(Application
no. 25196/04)
JUDGMENT
STRASBOURG
2 February
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Christian
Democratic People's Party v. Moldova (no. 2),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 12 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25196/04) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by the Christian Democratic People's
Party (“the applicant party”) on 26 May 2004.
- The
applicant was represented by Mr V Nagacevschi, a lawyer practising in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
- The
applicant party alleged, in particular, that its right to freedom of
assembly had been violated.
- On
4 April 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
Christian Democratic People's Party (“the CDPP”) is a
political party in the Republic of Moldova which was represented in
Parliament and was in opposition at the time of the events.
- On
3 December 2003 the applicant party applied to the Chişinău
Municipal Council for an authorisation to hold a protest
demonstration in the Square of the Great National
Assembly, in front of the Government's building, on 25 January 2004.
According to the application, the organisers intended to express
views on the functioning of the democratic institutions in Moldova,
the respect for human rights and the Moldo-Russian conflict in
Transdniestria.
7. On
20 January 2004 the Chişinău Municipal Council rejected the
applicant party's request on the ground that “it had convincing
evidence of the fact that during the meeting, there will be calls to
a war of agression, ethnic hatred and public violence”.
8. The
applicant party challenged the refusal in court and argued, inter
alia, that the reasons relied upon by the
Municipal Council were entirely baseless.
9. On
23 January 2004 the Chişinău Court of Appeal dismissed the
applicant party's action. The court found that the Municipal
Council's refusal to authorise the CDPP's demonstration was justified
because the leaflets disseminated by it contained such slogans as
“Down with Voronin's totalitarian regime” and “Down
with Putin's occupation regime”. According to the Court of
Appeal, these slogans constituted a call to a violent overthrow of
the constitutional regime and to hatred towards the Russian people.
In this context, the court recalled that during a previous
demonstration organised by the applicant party to protest against the
presence of the Russian military in Transdniestria, the protesters
burned a picture of the President of the Russian Federation and a
Russian flag.
10. The
applicant party appealed against the above decision arguing, inter
alia, that the impugned slogans could not
have reasonably been interpreted as a call to a violent overthrow of
the Government or as a call to ethnic hatred and that the refusal to
authorise the meeting constituted a breach of its rights guaranteed
by Articles 10 and 11 of the Convention.
11. On
21 April 2004 the Supreme Court of Justice dismissed the applicant
party's appeal and confirmed the judgment of the Court of Appeal.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Assemblies Act of 21 June 1995 read as
follows:
“Section 6
(1) Assemblies shall be conducted peacefully,
without any sort of weapons, and shall ensure the protection of
participants and the environment, without impeding the normal use of
public highways, road traffic and the operation of economic
undertakings and without degenerating into acts of violence capable
of endangering the public order and the physical integrity and life
of persons or their property.
Section 7
Assemblies shall be suspended in the following
circumstances:
(a) denial and defamation of the State and of
the people;
(b) incitement to war or aggression and
incitement to hatred on ethnic, racial or religious grounds;
c) incitement to discrimination, territorial
separatism or public violence;
d) acts that undermine the constitutional
order.
Section 8
(1) Assemblies may be conducted in squares,
streets, parks and other public places in cities, towns and villages,
and also in public buildings.
(2) It shall be forbidden to conduct an
assembly in the buildings of the public authorities, the local
authorities, prosecutors' offices, the courts or companies with armed
security.
(3) It shall be forbidden to conduct
assemblies:
(a) within fifty metres of the parliament
building, the residence of the president of Moldova, the seat of the
government, the Constitutional Court and the Supreme Court of
Justice;
(b) within twenty-five metres of the
buildings of the central administrative authority, the local public
authorities, courts, prosecutors' offices, police stations, prisons
and social rehabilitation institutions, military installations,
railway stations, airports, hospitals, companies which use dangerous
equipment and machines, and diplomatic institutions.
(4) Free access to the premises of the
institutions listed in subsection (3) shall be guaranteed.
(5) The local public authorities may, if the
organisers agree, establish places or buildings for permanent
assemblies.
Section 11
(1) Not later than fifteen days prior to the
date of the assembly, the organiser shall submit a notification to
the Municipal Council, a specimen of which is set out in the annex
which forms an integral part of this Act.
(2) The prior notification shall indicate:
(a) the name of the organiser of the assembly
and the aim of the assembly;
(b) the date, starting time and finishing
time of the assembly;
(c) the location of the assembly and the
access and return routes;
(d) the manner in which the assembly is to
take place;
(e) the approximate number of participants;
(f) the persons who are to ensure and answer
for the sound conduct of the assembly;
(g) the services which the organiser of the
assembly asks the Municipal Council to provide.
(3) If the situation so requires, the
Municipal Council may alter certain aspects of the prior notification
with the agreement of the organiser of the assembly.”
Section 12
(1) The prior notification shall be examined
by the local government of the town or village at the latest 5 days
before the date of the assembly.
(2) When the prior notification is considered
at an ordinary or extraordinary meeting of the Municipal Council, the
discussion shall deal with the form, timetable, location and other
conditions for the conduct of the assembly and the decision taken
shall take account of the specific situation.
(...)
(6) The local authorities can reject an
application to hold an assembly only if after having consulted the
police, it has obtained convincing evidence that the provisions of
sections 6 and 7 will be breached with serious consequences for
society.
Section 14
(1) A decision rejecting the application for
holding an assembly shall be reasoned and presented in writing. It
shall contain reasons for refusing to issue the authorisation...
Section 15
(1) The organiser of the assembly can
challenge in the administrative courts the refusal of the local
government.”
THE LAW
- The applicant party complained that the refusal to
authorise its protest violated its right to freedom of peaceful
assembly as guaranteed by Article 11 of the Convention, which
provides:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration
of the State.”
I. ADMISSIBILITY OF THE CASE
- The
Court considers that the present application raises questions of fact
and law which are sufficiently serious for their determination to
depend on an examination of the merits, and that no grounds for
declaring it inadmissible have been established. The Court therefore
declares the application admissible. In accordance with its decision
to apply Article 29 § 3 of the Convention (see
paragraph 4 above), the Court will immediately consider its merits.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
A. The arguments of the parties
- The
applicant party submitted that the interference with its right to
freedom of assembly did not pursue a legitimate aim and was not
necessary in a democratic society.
- The
Government accepted that there has been an interference with the
applicant's rights as guaranteed by Article 11 of the Convention.
However, that interference was prescribed by law, namely by the
Assemblies Act, pursued a legitimate aim and was necessary in a
democratic society.
- In
so far as the legitimate aim was concerned, the Government argued
that the interference was warranted as it pursued national security
and public order interests. In the Government's opinion, the holding
of the demonstration in front of the Government could have led to
tension between the majority electorate of the Communist Party and
the minority electorate of the applicant party and degenerate into
acts of violence. Moreover, the calls of the applicant party
concerning the “Russian occupation of Moldova” amounted
to an instigation to a war of aggression and hatred against Russians.
As to the proportionality of the interference with the legitimate aim
pursued, the Government argued that the interest of the majority
electorate who had voted for the Communist Party prevailed over that
of the minority electorate who had voted for the applicant party. In
addition, in limiting the applicant's freedom of assembly, the
authorities took into account the interest of Moldova in maintaining
good bilateral relations with the Russian Federation.
B. The Court's assessment
- It
is common ground between the parties, and the Court agrees, that the
decision to reject the applicant party's application to hold a
demonstration on 25 January 2004 amounted to “interference by
[a] public authority” with the applicant's right to freedom of
assembly under the first paragraph of Article 11. Such
interference will entail a violation of Article 11 unless it is
“prescribed by law”, has an aim or aims that are
legitimate under paragraph 2 of the Article and is “necessary
in a democratic society” to achieve such aim or aims.
- The
parties do not dispute that the interference was lawful within the
meaning of Article 11 of the Convention. At the same time they
disagreed as to whether the interference served a legitimate aim. The
Court, for the reasons set out below, does not consider it necessary
to decide this point and will focus on the proportionality of the
interference.
- The
Court recalls that it has stated many times in its judgments that not
only is democracy a fundamental feature of the European public order
but the Convention was designed to promote and maintain the ideals
and values of a democratic society. Democracy, the Court has
stressed, is the only political model contemplated in the Convention
and the only one compatible with it. By virtue of the wording of the
second paragraph of Article 11, and likewise of Articles 8, 9
and 10 of the Convention, the only necessity capable of justifying an
interference with any of the rights enshrined in those Articles is
one that may claim to spring from a “democratic society”
(see Refah Partisi (the Welfare Party) and Others v. Turkey
[GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, §§ 86 89,
ECHR 2003 II, and Christian Democratic People's Party
v. Moldova, no. 28793/02, ECHR 2006 II).
- Referring
to the hallmarks of a “democratic society”, the Court has
attached particular importance to pluralism, tolerance and
broadmindedness. In that context, it has held that although
individual interests must on occasion be subordinated to those of a
group, democracy does not simply mean that the views of the majority
must always prevail: a balance must be achieved which ensures the
fair and proper treatment of minorities and avoids any abuse of a
dominant position (see Young, James and Webster v. the United
Kingdom, 13 August 1981, § 63, Series A no. 44, and
Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95
and 28443/95, § 112, ECHR 1999 III).
- When
carrying out its scrutiny under Article 11 the Court's task is not to
substitute its own view for that of the relevant national authorities
but rather to review under Article 11 the decisions they have
delivered in the exercise of their discretion. This does not mean
that it has to confine itself to ascertaining whether the respondent
State exercised its discretion reasonably, carefully and in good
faith; it must look at the interference complained of in the light of
the case as a whole and determine whether it was “proportionate
to the legitimate aim pursued” and whether the reasons adduced
by the national authorities to justify it are “relevant and
sufficient”. In so doing, the Court has to satisfy itself that
the national authorities applied standards which were in conformity
with the principles embodied in Article 11 and, moreover, that they
based their decisions on an acceptable assessment of the relevant
facts (see, United Communist Party of Turkey and Others v. Turkey,
30 January 1998, § 47, Reports of Judgments and Decisions
1998 I).
- The
right to freedom of peaceful assembly is secured to everyone who has
the intention of organising a peaceful demonstration. The possibility
of violent counter-demonstrations or the possibility of extremists
with violent intentions joining the demonstration cannot as such take
away that right (see Plattform “Ärzte für das
Leben” v. Austria, judgment of 21 June 1988, §
32, Series A no. 139). The burden of proving the violent intentions
of the organisers of a demonstration lies with the authorities.
- In view of the essential role played by political
parties in the proper functioning of democracy, the exceptions set
out in Article 11 are, where political parties are concerned, to be
construed strictly; only convincing and compelling reasons can
justify restrictions on such parties' freedoms guaranteed by Article
11. In determining whether a necessity within the meaning of
Article 11 § 2 exists, the Contracting States have only a
limited margin of appreciation, which goes hand in hand with rigorous
European supervision (see Socialist Party and Others v. Turkey,
25 May 1998, § 50, Reports 1998 III). While freedom
of expression is important for everybody, it is especially so for an
elected representative of the people. He represents his electorate,
draws attention to their preoccupations and defends their interests.
Accordingly, interferences with the freedom of expression of an
opposition member of parliament call for the closest scrutiny on the
part of the Court (see Castells v. Spain, 23 April 1992, §
42, Series A no. 236).
- The Court has often reiterated that the Convention is
intended to guarantee rights that are not theoretical or illusory,
but practical and effective (see Artico v. Italy, judgment of
13 May 1980, § 33, Series A no. 37). It follows from
that finding that a genuine and effective respect for freedom of
association and assembly cannot be reduced to a mere duty on the part
of the State not to interfere; a purely negative conception would not
be compatible with the purpose of Article 11 nor with that of the
Convention in general. There may thus be positive obligations to
secure the effective enjoyment of the right to freedom of association
and assembly (see Wilson, National Union of Journalists and
Others v. the United Kingdom, nos. 30668/96, 30671/96 and
30678/96, § 41, ECHR 2002-V) even in the sphere of relations
between individuals (see Plattform “Ärzte für das
Leben”, cited above, § 32). Accordingly, it is
incumbent upon public authorities to guarantee the proper functioning
of a political party, even when it shocks or gives offence to persons
opposed to the ideas or claims that it is seeking to promote. Their
members must be able to hold meetings without having to fear that
they will be subjected to physical violence by their opponents. Such
a fear would be liable to deter other associations or political
parties from openly expressing their opinions on highly controversial
issues affecting the community.
- Turning
to the circumstances of the present case, the Court notes that at the
material time the CDPP was a minority parliamentary opposition party
with approximately ten per cent of the seats in Parliament, while the
majority Communist Party had approximately seventy per cent of the
seats. The interference concerned a demonstration in which the
applicant party intended to protest against alleged anti-democratic
abuses committed by the Government and against the Russian military
presence in the break-away Transdniestrian region of Moldova. Given
the public interest in free expression in respect of such topics and
the fact that the applicant party was an opposition parliamentary
political party, the Court considers that the State's margin of
appreciation was correspondingly narrow and that only very compelling
reasons would have justified the interference with the CDPP's right
to freedom of expression and assembly.
-
The Court notes that the Chişinău Municipal Council and the
domestic courts considered that the slogans “Down
with Voronin's totalitarian regime” and “Down with
Putin's occupation regime” ammounted to calls to a violent
overthrow of the constitutional regime and to hatred towards the
Russian people and an instigation to a war of agression against
Russia. The Court notes that such slogans should be understood
as an expression of dissatisfaction and protest and is not convinced
that they could reasonably be considered as a call to violence
even if accompanied by the burning of flags and pictures of Russian
leaders. The Court recalls that even such forms of protest as active
physical obstruction of hunting were held to be an expression of an
opinion (see Steel and Others v. the United Kingdom, 23
September 1998, § 92, Reports 1998 VII; Hashman
and Harrup v. the United Kingdom [GC], no. 25594/94, §
28, ECHR 1999 VIII). In the present case also the Court finds
that the applicant party's slogans, even if accompanied by the
burning of flags and pictures, was a form of expressing an opinion in
respect of an issue of major public interest, namely the presence of
Russian troops on the territory of Moldova. The Court recalls in this
context that the freedom of expression refers not only to
“information” or “ideas” that are favourably
received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb (see Jersild
v. Denmark, 23 September 1994, § 31, Series A no. 298).
Accordingly, the Court is not convinced that the above reasons relied
upon by the domestic authorities to refuse the applicant party
authorisation to demonstrate could be considered relevant and
sufficient within the meaning of Article 11 of the Convention.
- In
their decisions, the domestic authorities also relied on the risk of
clashes between the demonstrators and the supporters of the governing
party. The Court considers that even if there was a theoretical risk
of violent clashes between the protesters and supporters of the
Communist Party, it was the task of the police to stand between the
two groups and to ensure public order (see paragraph 25 above).
Therefore, this reason for refusing authorisation could not be
considered relevant and sufficient within the meaning of Article 11
of the Convention too.
- In reaching the above conclusions the Court recalls
that the applicant party had a record of numerous protest
demonstrations held in 2002 which were peaceful and at which no
violent clashes had occurred (see, Christian Democratic People's
Party v. Moldova, cited above; Roşca and Others
v. Moldova, nos. 25230/02, 25203/02, 27642/02, 25234/02 and
25235/02, 27 March 2008). In such circumstances the Court considers
that there was nothing to suggest in the applicant party's actions
that it intended to disrupt public order or to seek a confrontation
with the authorities or with supporters of the governing party (see
Hyde Park and Others v. Moldova,
no. 33482/06, § 30, 31 March 2009).
- Accordingly,
Court concludes that the interference did not correspond to a
pressing social need and was not necessary in a democratic society.
There has been a violation of Article 11 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 3,000 euros (EUR) in respect of moral damage.
- The
Government disagreed and argued that the amount was excessive and
unsubstantiated.
- The
Court awards the applicant party the entire amount claimed.
B. Costs and expenses
- The
applicants also claimed EUR 1,098.05 for the costs and expenses
incurred before the domestic courts and the Court.
- The
Government contested the amount and argued that it was excessive.
- The
Court awards EUR 1,000 for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to
be converted into the currency of the respondent State at the rate
applicable at the date of settlement:
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage plus
any tax that may be chargeable on this amount;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses plus any
tax that may be chargeable to the applicant on this amount;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 2 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
